After 1688 even the summary conviction of sexual offenders was increasingly called into question. Throughout the middle ages, the sixteenth century, and the seventeenth, as we have seen, it had been common practice to punish harlots summarily for their evil life. The societies for reformation continued this practice, systematically using so-called general warrants, which empowered constables to round up anyone they suspected. Yet by the early decades of the eighteenth century it had become highly contentious.
We can see this partly in the rise of popular resistance to the arrest of street-walkers. The presence in London of ever-larger numbers of soldiers and sailors in the course of the eighteenth century meant that antagonism towards moral policing became increasingly aggressive and commonplace. In 1702, and again in 1709, reforming constables were stabbed to death in public whilst attempting to detain streetwalkers. In the spring of 1711, a drive against ‘loose women and their male followers’ in Covent Garden was foiled when ‘the constables were dreadfully maimed, and one mortally wounded, by ruffians aided by 40 soldiers of the guards, who entered into a combination to protect the women’. On another occasion in the East End, a crowd of over a thousand seamen mobbed the local magistrates and forcibly released a group of convicted prostitutes being sent to a house of correction.1
As well as this newly muscular popular antagonism towards moral policing, there was a growing undercurrent of unease about its legal implications. In 1709, the trial of three soldiers for the death of the reforming constable turned into a major debate about whether an officer could lawfully arrest a prostitute if she was only soliciting, rather than actually having sex. Before 1688 this would have been an inconceivable question: no one would have doubted that common whores could be summarily punished, or cared much about the legal niceties of their detention. But the actions of the societies made it for the first time a matter of serious debate how far the law should be stretched to correct the morals even of harlots and scoundrels. The tendency of legal opinion was increasingly sceptical. ‘What!’ exclaimed the Lord Chief Justice, Sir John Holt, in an interpretation upheld by the majority of his fellow-judges, ‘must not a woman, tho’ she be lewd, have the liberty to walk quietly about the streets? . . . What! must not a woman of the town walk in the town streets? . . . Why, a light woman hath a right of liberty as well as another to walk about the streets.’ It was insupportable that ‘the liberty of the subject shall depend upon the good opinion of the constable’; to arrest a woman ‘upon a bare suspicion that she was lewd. . . is not that against Magna Carta?’ It was on similar grounds that the campaign for reformation was dealt a fatal blow in 1725, when its use of general warrants to round up suspected prostitutes was ruled by the Westminster bench of justices to be irregular and illegal.2
Not surprisingly, reformers believed that such legal challenges arose from opposition to the very idea of moral policing. It was obvious that many magistrates disliked informers, refused to assist the societies, or discouraged their work. Yet often such distaste concerned the methods rather than the aims of the campaign — some of the justices most vilified as enemies of reform were themselves notably active against immorality. More generally, the difficulties faced by the societies reflected deeper shifts in legal principle, which affected the treatment of all kinds of crime in the course of the eighteenth century. One crucial change was that punishment was increasingly inflicted only upon proof of specific misconduct. In earlier times, the perception of immoral demeanour had often sufficed: the law allowed men and women to be arrested if they were accounted ‘lewd, idle, and disorderly’ or ‘of evil name and fame, generally’. Now its scope was gradually limited to particular actions, rather than a person’s general character; and magistrates, judges, and parliament were concerned to define offences with greater specificity. A related development was that, as eighteenth-century statutes relied ever more upon summary jurisdiction, the powers of justices and inferior officers were increasingly subjected to scrutiny, formalized, and more clearly delimited. In this climate of greater scrupulosity, the societies’ methods could seem alarmingly cavalier. When questioned by the Secretary of State James Vernon in 1698, one Presbyterian reformer conceded that they sometimes proceeded contrary ‘to the received rules of law’, as was ‘justifiable by the prerogative of the king of heaven, whose honour ought to be vindicated by extraordinary methods’. This was the attitude that the Puritan major-generals of the 1650s had taken. Even then it had been exceptional; by the dawn of the eighteenth century it had become generally discredited.3
As a consequence of such trends, it gradually came to be doubted whether prostitutes were culpable at all. This did not mean that such women were no longer subjected to harassment, arrest, and incarceration: the balance of power was still heavily stacked against them.4 Nevertheless it was a remarkable development, which reversed centuries of legal tradition and — at least in principle — gave them unprecedented rights. By the middle of the eighteenth century the idea had become firmly established that street-walking by prostitutes was not itself punishable. Around 1750, the novelist and magistrate Henry Fielding identified this as an abuse in urgent need of remedy. Though ‘the law hath formerly held to be otherwise’, he noted with some frustration, nowadays it was impossible to punish prostitutes just for soliciting and for their general ‘indecent behaviour’. In 1770 his halfbrother, Sir John Fielding, confirmed to a parliamentary committee that there was a ‘great difficulty, as the law now stands, to punish those offenders, they being, as common prostitutes, scarce, if at all, within the description of any statute’. Even open soliciting, and ‘prostitutes. . . walking the streets and using the most obnoxious and obscene language’, the Guardian Society for the Preservation of Public Morals found a generation later, had come to be beyond the reach of justice.5
The nineteenth century saw repeated attempts to remedy this increasingly glaring defect; but their failure shows how completely the underlying assumptions of the law had moved away from their pre-modern origins. The Vagrancy Act of 1822 briefly revived the Jacobean interpretation, by specifying that ‘all common prostitutes. . . not giving a satisfactory account of themselves, shall be deemed idle and disorderly persons’; but two years later another statute restored the principle that only an actual breach of the peace was punishable. The three Contagious Diseases Acts passed in the 1860s empowered policemen in certain military districts to identify women as ‘common prostitutes’ and forcibly register them. Yet this system of licensing and regulating prostitution proved deeply controversial, and, following a national campaign, the acts were repealed in 1886.6
The final and most striking change of all was the dwindling hold of the law upon bawds and brothel-keepers. Up to the end of the seventeenth century, legal action against such offenders had remained commonplace and fairly effective. In the early 1670s there were perhaps 400 or 500 prosecutions each year across the metropolis, accounting for as much as a quarter of all criminal indictments brought at the main suburban sessions. In the 1690s, the societies for reformation stepped up the pressure further, particularly in the City, leading to the conviction of dozens of brothel-keepers every year. Yet over the first half of the eighteenth century the number of prosecutions steadily declined, and by the middle of the century the law had effectively lost its grip on the problem. In 1748, in an attempt to reinvigorate it, the energetic new high constable of Holborn, Saunders Welch, himself brought indictments against the three most notorious brothel-keepers in London: Peter Wood of ‘The Star’, Elizabeth Owen of ‘The Crown’, and Anne Everett of ‘The Bunch of Grapes’, all on the Strand. His own petty constables acted as witnesses. About a hundred other bawds were prosecuted in the course of the year, many of them more than once. Not one was convicted.7
This was all the more remarkable because it was also in the early eighteenth century that bawds and brothels came to be viewed with
mounting hostility. As it became fashionable to downplay the personal culpability of individual prostitutes, the role of the wicked procurer was newly emphasized. The capital’s bawdy houses were also increasingly singled out as a prime cause of robberies, burglaries, and serious lawlessness.8 As a result, the middle decades of the eighteenth century saw redoubled efforts to stamp out the problem. In 1752, parliament passed a new ‘Act for the better preventing thefts and robberies. . . and punishing persons keeping disorderly houses’, in order to solve the legal difficulties. It outlawed the most common defence tactics, offered large rewards, and obliged parishes to bear the costs of prosecutions. Yet its impact was negligible. In 1758, Saunders Welch, by now a magistrate, noted with dismay the Act’s failure to suppress even ‘the open and bare-faced bawdy houses’. That same year there were, despite his own efforts, probably no more than ten or fifteen successful actions for brothel-keeping across the whole of London, a city of some 700,000 people. In the following decade the Act proved equally useless to the new society for reformation of manners. Thus by the later eighteenth century even the application of special zeal, private largesse, and tailor-made legislation, in a sympathetic climate of opinion, could not bring about the effective repression of bawdy houses.9
The most obvious reason for this was expense. Already in the 1690s the various proposed acts against immorality had been concerned to remedy this. For even though the societies for reformation raised and spent huge sums on legal fees, they never had enough money to see through every case, let alone to indict all the brothels they detected. Most bawds fought back viciously, not only defending themselves tenaciously but mounting vexatious counter-prosecutions that tied up the reformers legally and crippled them financially. Other moral offences, by contrast, remained comparatively easy and inexpensive to prosecute. When the new Society for Reformation was first set up in the later 1750s, it was able to prosecute over 6,000 Sabbath — breakers, gamblers, and drunkards, and distribute over 40,000 books and broadsides, for about seventy pounds per year. Yet from the moment it joined battle against prostitution, its finances became much more precarious. Annual expenditure shot up, to between 300 and 400 pounds, at least half of which was spent fending off malicious prosecutions by the keepers of disorderly houses. It was just such a counter-suit that destroyed the new society in 1763, when the mistress of a Chancery Lane brothel used perjured evidence to win punitive damages against it.10
A deeper problem was therefore the rising legal expertise of hardened sexual criminals. Litigation against such people must always have been particularly difficult; but in the eighteenth century the balance seems to have shifted decisively in their favour. It was dismaying to see how easily lewd and disorderly houses brushed aside justice by ‘the suborning of false witnesses, and perjuries in the open courts’, complained a preacher in 1734. Compared with their opponents, bawds and their associates increasingly had deeper pockets and greater confidence in manipulating the law. An important contributory factor appears to have been the growing involvement of lawyers, whose influence is evident from around the turn of the century in several procedural challenges to the prosecution of whores and bawds.11 By the 1730s it was not uncommon in cases of all kinds for solicitors and barristers to offer themselves for hire to offenders taken before a magistrate, put on trial, wishing to appeal, or looking to sue for damages. In Westminster, the bench repeatedly ran out of money defending constables against vexatious suits by the keepers and frequenters of disorderly houses.12 By the middle decades of the century even ordinary street-walkers sometimes had recourse to lawyers, and by the end of the century the legal confidence of some of them was remarkable. In 1791, when one young woman was picked up by Viscount Dun — garvan and the transaction between them went wrong, she promptly sued him for theft. She lost, but only after an extraordinarily long trial, lasting almost six hours. For an illiterate London prostitute to have put an aristocratic client on trial for his life over such a matter would have been inconceivable in any earlier age. (Her name was Elizabeth Weldon, alias Troughton, alias Smith. When cross-examined she spoke frankly and confidently about her life and profession. Her attorney had been recommended to her by her hairdresser.)13
The rising litigiousness of such experienced sexual miscreants inhibited constables and magistrates from pursuing them. It made the work of moral reformers so difficult that in the later 1730s the societies for reformation gave up on legal methods altogether, whilst others, such as the early leaders of the Vice Society, resorted to fraud and perjury themselves. Above all, it greatly reduced the willingness of ordinary men and women to take part in moral regulation. Even in the 1690s it had been common for householders to be well acquainted with the machinery of the law, and to take an active role in the policing of bawds and whores. Yet just a few decades later they had become notoriously reluctant to do so, for fear of abuse, expense, and vexatious litigation. Most respectable parishioners, already far removed from the day-to-day policing of their neighbourhoods, preferred to keep their distance from such dangerous adversaries.14 Public discipline had come to be ever harder to enforce, even upon the most notorious and widely reviled sexual criminals.